Provides well-researched analytical, often humourous takes on political, economic, social, cultural, technological and ideological issues and struggles that have to do with Kenya, Africa and the world from a progressive world outlook....Anything goes in terms of topics- from literature to comedy to relationships...

Saturday, April 06, 2013

Judging Chief Justice Willy Mutunga in Context

Appreciating a Comrade and a
Mentor

By Onyango Oloo

It has been exactly one week
since that stunning 6-0 verdict by the Supreme Court sealed the ascendancy of
Uhuru Kenya to the apex of the Kenyan neo-colonial state.

At the time that the five minute
shocker was beamed to millions of people across East and Central Africa and
streamed onlineto tens of thousands
more around the world, I was among the hundreds of people huddled over and
clutching our various gadgets-lap tops, digital cameras, recorders-in the
adjacent Media Centre.I had been
reflecting on the ramifications of this ruling all day, ever since I had
arrived at the precincts opposite the Reinsurance Plaza at around 8:30 am.

Immediately the green robed lords and her
ladyship made a hasty exit from the court, after delivering that collective slap
on the Kenyan people, I started pounding away at my keyboard, giving birth and
delivering my upcoming blog almost instantaneously; making some cyberskeptics,
questioning the alacrity with which I churnedout the essay,wonder loudly whether I had the digital on tap all along.

Nothing could have prepared me and most
Kenyans in my progressive circles for that unlikely dénoûment to
what was no doubt, a gripping post-election judicial soap opera.

Even now, most of patriotic and
democratic Kenya is still in denial, not unlike those unfortunate road accident
casualties who keep congratulating themselves for surviving the grisly head on
crash-not realizing unfortunately, that the head they are speaking from was decapitated from
their torsos five minutes previously and that they are muttering their dying words.

Inspired by that national sense of betrayal and the subsequent, persistent denial of the reality and
ramifications of that Supreme Court decision, there is a crescendo of rumours
and speculations imbued with a mixture of anger, fear, hope and anguish.

In the classic Kenyan tradition,
every urban legend, trope, every tall tale and every single rumour is by definition, always
“CONFIRMED” and “VERIFIED” by allegedly IMPECCABLE sources-whether these
aretouted to be the Supreme Court
Justices themselves,State House
insiders, CORD strategists or evenJubilee moles.

Here is a sample of the sizzling
stories doing the rounds in Nairobi and elsewhere in this conflicted and
tortured republic:

1.“The
decision was scripted by the NSIS and thrust to the Chief Justice to read at
gun point”;

2.“Kibaki
had already handed power to the military top brass a week earlier and the
generals had vowed never to serve underRaila Odinga who had once attempted a coup de tat”;

3.“Each
of the Supreme Court judges was given one billion shillings to rule in Uhuru’s
favour.In fact, Justice Wanjala arrived
at his residence around 8:30-9:00 pm to find four men waiting for him in his
living room. One of themopened ahuge suitcase stuffed with crisp 1,000
shillings and terselyinstructed him to
do what he knew was right for our beloved motherland”;

4.“Dr.
Willy Mutunga called the Prime Minister and spoke to him for over 40 minutes
explaining to the CORD flag bearer how
the forces of impunity had held him hostage; Raila understood the dilemma his
friend and comrade was grappling with”;

5.“The
judges were split 3-3 (with Willy, Smokin’ and Ibrahim on one side). They opted
to projecta united front as the Supreme
Court, hence the 6-0 unanimous announcement”;

6.“Obama,
Cameron and Merkel had themselves urged Kenyan civil society juggernauts like
GladwellOtieno, Maina Kiai, Muthoni
Wanyeki and John Githongo not to worry about Uhuru becoming President because
within two months the ICC duo would be securely locked up at the Hague”;

7.Etc.
etc. etc.;

Is there ANY truth to the above
rumours?

SOME truth?

Completely baseless
fabrications?

Who knows?

Kenya is a weird and surreal
territory.

Some of the giddiest and wildest urban legends often turn out to
have more than a kernel of truth.

On the other hand, perhaps the
TRUTH is in fact, STRANGER THAN FICTION.

Perhaps we Kenyans should treat as
LITERAL, this verbatim rendition from the Supreme Court:

1. After extensive deliberations,
we are happy to announce the Supreme Court has reached a unanimous decision on
all the four issues that fell for determination in presidential election
Petition No. 3, 4 and 5 as consolidated.

2. The following is the unanimous
decision of the court:

(i) As to whether the
presidential election held on March 4th 2013, was conducted in a free, fair,
transparent and credible manner, in compliance with the provisions of the
Constitution and all relevant provisions of the law; it is the
decision of the court that the said elections were indeed conducted in
compliance with the Constitution and the law.

(ii) As to whether the 3rd and
4th Respondents were validly elected and declared as President elect and Deputy
President elect of the Republic of Kenya respectively, by the Second Respondent
in the presidential elections held on the 4th March 2013; it is the decision of
the court that the 3rd and 4th respondents were validly elected.

(iii) As to whether the rejected
votes ought to have been included in determining the final tally of votes in
favour of each of the Presidential candidate by the 2nd Respondent; it is the
decision of the court that such rejected votes ought not to have been included
in calculating the final tallies in favour of each presidential candidate.

(iv) As to what consequential
declarations, orders and reliefs, that this honorable court ought to grant
based on the above determinations, the following are the orders of the Court:

a. Petition No.5 of the
consolidated petitions is hereby dismissed.

b. Petition No. 4 of the
consolidated petitions is hereby dismissed.

c. As to Petition No. 3 of the
consolidated petitions, the prayer by the Petitioners seeking a declaration of
recomputation of percentages by the 2nd Respondent is declined as the court as
no jurisdiction.

d. Regarding orders as to costs,
the Court orders that each party bears his/her/it’s own costs.

3. The detailed judgement
containing the reasons for decision of the Court will be issued within two
weeks from today.

To tens of millions of Kenyans
(including many who DID NOT VOTE AT ALL) the above words still ring hollow, fake and
contrived.

That is why half of the country
is shuffling its feet, shrugging its collective shoulders and sighing heavily,
muttering:

“OK, let’s wait for that detailed
written ruling that they promised to furnish us with in two weeks.”

To give an inkling of what most
progressive and democratic minded Kenyans are thinking at the moment,
contemplate thisOpen Letter to Chief
Justice Dr. Willy Mutunga, penned by Gideon Wafula and carried in the April 4,2013 issue of the online Pambazuka social justice newsletter which reaches
millions around the world:

Neither Enemy nor Friend of the
Supreme Court

Dear CJ Mutunga,

This will disappoint you but the
truth is that I am not a learned friend. If I were a learned friend, I would
wait for your ruling to question its legal bases. Being a simple Kenyan who is
tired of being referred to us ‘Wanjiku’, I want to know why you upheld the
Wanjiku Tyranny? In asking these questions, dear CJ, just like you recently
tweeted, I am neither a friend nor enemy of the Supreme Court.

In five minutes, and with a
dismissive tone, you brushed aside all our hopes for a truthful moment. We did
not care that the ruling goes either way, we cared more that the basis of the
ruling be sound enough to give us reason to believe there is an institution we
can count on. Currently, we are not very sure whether the Supreme Court has the
interest of Nafula, Muthini, Atieno and Fatuma at heart. It is possible that
you had the interests of Wanjiku at heart, but did the interests of Wanjiku
necessarily mean the interests of Anyango being sacrificed at the altar of
judicial expediency? Your ruling was final and it legitimised the Uhuruto
presidency but so that this presidency gains popular legitimacy, please address
yourself to the following concerns as you prepare your detailed ruling.

TECHINICALITIES VS. SUBSTANCE

You dismissed AFRICOG’s
application for the principal register, CORD’s affidavit and CORD’s application
for an audit of the electronic voting system on a technicality basis. Will the
technicality dismissal suffice as final or will you provide direction as to how
substantive issues raised in relation to the above mentioned are to be
addressed?

CONDUCT OF THE INDEPENDENT
ELECTORAL AND BOUNDARIES COMMISSION

Dear Lord (I cringe as I call you
Lord), in your dismissal of applications on the basis of there being no time
you did well to keep within set timelines. Good enough, but you notice there is
more than just timelines in the quest for justice. I hope it does not escape
your scrutiny that IEBC was adversarial rather than facilitative of justice.
During the tallying process, it did not escape the public eye that IEBC chief executive
James Oswago seemed too busy to be seen anywhere. The IEBC chair Isaak Hassan
seemed dismissive from my subjective vantage point. There were claims of some
agents being thrown out and the institution refusing to respond to questions.
Immediately after announcing the results, they went ballistic to the extent of
branding petitioners as sour losers. They did not willingly provide requested
documents and insisted that we needed to accept and move on rather than remain
independent arbitrators. Will your ruling address itself to the failings of the
IEBC?

CONDUCT OF LEARNED FRIENDS

I was dismayed to watch one
strong lynch man in the name of learned friend Ahmednasir Abdullahi who not
only cajoled but actually demeaned the person of Prime Minister Raila Odinga,
one of the petitioners. I heard him describe the Supreme Court as “crawling”
and his effort to portray Raila as a sour looser just baffled. Would you help
me understand whether it is just for learned friends to come before your court
and act so selfishly? How would you allow such men to rub salt into wounds like
the shambolic 1997 elections, the blatantly stolen 2007 elections? I wonder
what it would have been like if petitioners tried to show the government link
between those who stole elections in 2007 and those who may have facilitated
unacceptable anomalies in the 2013 election? I hope you give direction in terms
of whether such derogatory descriptions of our leaders under the glare of
cameras shall be condoned in the highest judicial office.

REJECTED VOTES

When you admitted the Attorney
General Prof Githu Muigai as amicus curiae in the proceedings, everyone knew
you had admitted an amicus Uhuru, one of the respondents. He did not disappoint
because interestingly, there was a petition already to inform the arguments of
this great amicus. While their arguments did hold water, I just hope your
ruling will not be based on the idea of rejected votes not being counted. This
is the only petition you upheld and I am of the opinion, it may just have been
the justifying principle for the unanimous vote. Going forward, would you give
direction on the high number of rejected votes and whether having the
presidential and parliamentary vote on the same day makes sense?

ANOMALIES

To the small mind of not so learned
friends like me and Nafula and Anyango, there were enough anomalies in the
registration, voting process and tallying process. The submissions in the
courts showed that there were just too many registers that the IEBC could rely
on. We heard of valid register, principal register, green books, special
register, etc. What is your definitive say on the issue of registers and IEBC’s
handling of registers?

There seems to have been
discrepancies between figures announced at polling stations and figures accepted
by the presidential returning officer, IEBC’s Hassan. How did you resolve these
discrepancies as to declare the election as having been free and fair despite
the anomalies? Did your ‘Suo Moto’ re-tallying not raise enough questions than
answers? Why did you go for arguments that explain anomalies away rather than
the questions that bring integrity into focus?

Should you have found the
anomalies as not substantial enough, would the votes lost due to errors of
commission or omission have been enough to trigger a run-off? Therefore, going
into the future, should IEBC be allowed to round off numbers by addition and
subtraction (‘human errors by young clerks’, according to Uhuru’s lawyer Fred
Ngatia) since this can be justified by the margin between leader and
runners-up?

SANCTITY OF THE VOTE

In your final ruling, Supreme
Court Lords, help us understand whether it matters that a Kenyan votes or not.
In 2007, Kenyans voted in droves and institutional failure ensured that,
hypocritically, we could not know who won. In 2013 we voted and while it is
clear that a clear mandate was manipulated, again your jurisprudence justified
a given regime. My question would be, between Fatuma, Muthini, Nafula, Atieno
and Wanjiku, whose vote holds more sway over the other? If you should accept
that each vote is the sacred will of a Kenyan, where is the justice in the
doctrine of substantial irregularity that many may be so willing to propound?
Your ruling legitimized the Jubilee government; however, did the votes
legitimize this government?

Last year, at the height of the
controversy in the launching of my friend Miguna’s Peeling Back the Mask, I
rushed to support the author when he expressed his disappointment when Willy
Mutunga declined the invitation to be the chief guest.

Willy, who has known me
for over thirty years just sent me a one line admonishment wondering why I did
not bother to also seek his side of the story.

In self-criticism therefore, I
will withhold any direct critique of Willy as an individual in regards to the
Supreme Court decision until such time I have heard from him directly.

Secondly, I think that any
criticism of Willy Mutunga mustbe
placed in context.

In ideological, historical and
political context that is.

I am asking, before we judge
Willy, do we know him?

How well do we know him?

So for the benefit of those
Kenyans and friends of Kenya whose knowledge of Dr. Willy Mutunga is limited to
the fact that Dr. Mutunga currently serves as the Chief Justice and President
of the Supreme Court, I want to bring to life the other Willy, the comrade we
have known and interacted with for decades upon decades.

To begin at the beginning:

Who is Willy Mutunga?

The factual and historical
contours of his biography are sketched out in a Wikipedia article from which we
draw this excerpt:

Background

Mutunga's father, Mzee Mutunga
Mbiti, worked as a tailor in the small town of Kilonzo, Kitui County, Nzambani
District. He died in 1985. His mother, Mbesa Mutunga, died in 1982.

Mutunga attended Ithookwe Primary
School before proceeding to Kitui School for his Kenya Certificate of Education
exams. He was the first student to score six points in the exams (an
"A" in all subjects), earning him a place at the Strathmore College
for his "A" levels. Mutunga received a Bachelor of Laws degree from
the University of Nairobi in the 1970s and a Master of Laws from the University
of Dar es Salaam. Mutunga joined the law faculty at the University of Nairobi
as a lecturer, becoming the first indigenous Kenyan to teach constitutional law
at the university level. In the late 1980s, he received his Doctorate of Laws
from the Osgoode Hall Law School at York University in Toronto.

On 13 May 2011, the Judicial Service
Commission of Kenya recommended to President Mwai Kibaki that he appoint
Mutunga to be chief justice of Kenya. After consulting with Prime Minister
Raila Odinga, Kibaki appointed Mutunga, and the National Assembly of Kenya
approved the appointment on 16 June 2011. He was sworn into office on 20 June
2011. Because of Kenya's mandatory retirement age of 70, Mutunga must leave
office no later than 16 June 2017.

Roots of radical activism

More than two decades of
writings, particularly in the media, reveal that Mutunga's activism was
inspired by several nationalists.[citation needed] Among these were the
anti-colonial fighter Dedan Kimathi, Kenyan activist Pio Gama Pinto, and Guinea
Bissau's intellectual nationalist Amílcar Cabral.

As a law lecturer at the
University of Nairobi in the 1970s and 1980s, Mutunga's activism was associated
with a small but determined group of academics who identified with Marxist /
Socialist ideologies, including Ngũgĩ wa Thiong'o, Al-Amin Mazrui, Kamonji
Wachira, and Maina wa Kinyatti. On 19 April 1972, this group formed the
University Staff Union (USU). Mutunga became the general secretary of USU in
1979, months after Daniel arap Moi succeeded Jomo Kenyatta as president and
began tightening his grip on power. Mutunga immediately rallied other USU
officials around a campaign for the reinstatement of Prof. Ngũgĩ wa Thiong'o to
his former job of teaching English and Literature at the University of Nairobi.
Ngũgĩ was incarcerated by the Kenyatta government in December 1977, and
although he was released in December 1978, he never returned to his job. Police
arrested Mutunga on 10 June 1980, and USU was banned on 19 July 1980.

Mutunga's arrest threw light on
the activities of a seemingly burgeoning Kenyan underground in the dark 1980s.
He was accused of being a member of the underground group known as the December
Twelve Movement and of participating in the production of the movement's
publication, Pambana. The police alleged they had found stamps used for mailing
Pambana after searching Mutunga's house. On 12 June 1982, he was charged in
court of being in possession of a "seditious" leaflet bearing the
headings "J. M. Solidarity Day" and "Don't Be Fooled: Reject
these Nyayos". On 29 July 1982, he was detained, just three days before
the 1 August 1982 abortive coup by the Air Force. He was also dismissed from
his University of Nairobi job.

Activities while in exile in
Canada

Mutunga went into exile in Canada
after his release on 20 October 1983. There, he joined a group of exiled Kenyan
student and intellectual activists and obtained his Doctorate of Law from
Osgoode Hall Law School in Toronto. While pursuing his doctorate, Mutunga
cooperated with other Kenyan exiles to launch the Kenya Human Rights Commission
(KHRC) to further the struggle for socio-economic justice and a democratic
constitutional order. Among these exiles were Kiraitu Murungi, then a law
lecturer and pursuing his masters at Harvard Law School; and Makau W. Mutua and
Maina Kiai, both United States-based anti-Moi activists.

As the cold war ended, Mutunga,
like many radical African academics, made the neoliberal turn and began
reconfiguring politics around a re-engineered liberal civil society.

Upon Kenya's return to
multi-party democracy in 1991, Mutunga and other exiles began returning home.
In 1992, the KHRC itself was relocated back to Kenya and registered in March
1994, starting its operations from the Chambers of Kamau Kuria and Kiraitu
Murungi Advocates. It gave legal cover to an array of nongovernmental
organizations in civil society that could not secure registration from the Moi
government. It also served as the think tank for Kenya's pro-democracy
movement.

Reforming civil society and the
constitution

In 1992, Mutunga joined the ranks
of the country's pro-democracy Young Turks, which included, among others, Paul
Muite, James Orengo, Kiraitu Murungi, Gitobu Imanyara, and Raila Odinga.

Most of the Young Turks drifted
to active politics following the formation of the Forum for the Restoration of
Democracy - Kenya in 1992 as an omnibus political movement. Mutunga, however,
became the chairman of the non-governmental Kenya Human Rights Commission
(KHRC), which he later also served as executive director. The KHRC supported
the formation and existence of organizations such as Kituo cha Sheria and the
Public Law Institute.

Mutunga also retained his global
intellectual networks. He served on the boards of various organisations,
including the Buffalo Human Rights Center at the University at Buffalo Law
School, the State University of New York.

Mutunga served as vice chairman
of the Law Society of Kenya (LSK) from 1991 to 1993 and chairman from 1993 to
1995. During his tenure as vice chairman and chairman, Mutunga helped launch
the LSK into activist politics, making it appear as a more formidable
opposition than the splintering opposition parties.

Mutunga's concept of
"constitution-making from the middle" also got its practical
expression during this period. Supported by a Ford Foundation grant, LSK teamed
with the KHRC and the Kenya chapter of the International Commission of Jurists
to produce a draft of a new constitution. This project was aimed at showing
that constitutional reforms were possible despite resistance by the Daniel arap
Moi regime. On 6 January 1995, the constitutional caucus was renamed the
Citizens' Coalition for Constitutional Change (or 4Cs) with Mutunga and
Christopher Mulei as its face. The 4Cs put together a coalition of political
parties and civic groups that planned for a national convention on the
constitution. This initiative resulted in the formation in April 1997 of the
National Constituent Assembly and its executive wing, the National Convention
Executive Council (NCEC) with former dean of law, Professor Kivutha Kibwana, as
its spokesperson. The NCEC organised constitution reform rallies in May, July,
and August 1997. Moi responded by arguing that the government could not
negotiate about constitutional reform with the civil sector, including the
NCEC, that consisted of people who had no elective mandate. Members of the
National Assembly bought the argument and abandoned the NCEC in favor of the
newly formed Inter-Parties' Parliamentary Group (IPPG), which overtook the
NCEC's initiative and allowed Moi to take control of the reform process and
then emasculate it. The IPPG shepherded minimal reforms before the 1997
elections and the enactment of the Constitution of Kenya Review Commission Act
in 1997. The NCEC, however, condemned the reforms as greatly flawed and not
addressing the basic problems that caused the constitutional crisis.

Coalition building and division

Mutunga has been hailed as
"an excellent negotiator". He convened the breakfast meetings of the
then opposition stalwarts, Mwai Kibaki, Charity Ngilu, and Michael Wamalwa, to
forge a common alliance ahead of the 2002 elections. The unity talks culminated
in the creation of the National Alliance for Change as a single coalition of
fourteen parties, later renamed the National Alliance Party of Kenya. The
Alliance merged with defectors from President Daniel arap Moi's Kenya African
National Union and joined the Liberal Democratic Party (LDP) to form the
National Alliance of Rainbow Coalition (NARC). Mutunga declined an offer to
serve as the chairperson of NARC, saying that his main interest was to unite
the opposition and not to join active politics. The NARC won the 2002
elections. After the elections, Mutunga was one of the senior counsels
appointed by President Kibaki in 2003 under Section 17 of the Advocates Act.

The NARC became the litmus gauge
for Mutunga's political neutrality, which lasted as long as the coalition elite
stayed united by the post-election euphoria. As soon as power wrangles between
the Kibaki and Raila Odinga factions of the NARC set in after 2002, Mutunga's
relations with the Kibaki administration grew frosty. On 8 April 2003, he
turned down an appointment by President Kibaki to the university council of the
Jomo Kenyatta University of Agriculture and Technology, saying that he lacked
the right qualifications for the position and was not consulted before the
appointment.

Like many left-wing academics,
Mutunga was an admirer of Jaramogi Oginga Odinga. After 2003, he drifted
ideologically to the portion of the NARC that identified with Raila Odinga's
LDP wing. In a 2003 interview with Raila's biographer, Babafemi Badejo, Mutunga
lauded Odinga as "an aggressive and astute politician" whose role in
the 1997 National Convention Executive Council rallies showed him as a
"great mobilizer and organizer". His only misgiving was Odinga's contradictory
role as a "nationalist and a patriot" on the one hand and "an
ethnic baron" who "uses both nationalist and ethnic cards for the
advancement of his political project". But he exculpated Odinga from this
contradiction arguing that he "has always struggled against dictatorship
and oppression and has been for social justice". Ahead of the divisive
2007 presidential campaign, Mutunga threw his weight behind Odinga, saying
"I am convinced Kenya's transition needs Raila as the president of this
country".

Move to the foreign donor sector

In 2004, as the intra-elite
rivalry in the National Alliance of Rainbow Coalition and fissures over the
constitutional negotiations turned perilous ahead of the 2005 referendum,
Mutunga joined the Ford Foundation in Nairobi as a human rights programme
officer. In 2009, he became the executive director overseeing all grant making
in Eastern Africa, mainly focusing on human rights and social justice and
protection of women's rights.

Mutunga's decision to leave
Kenya's declining civil society for a foreign foundation operating in Kenya
dented his pro-reform credentials in the eyes of some.[citation needed] Foreign
bilateral donor countries, such as the United States and the United Kingdom, had
long been accused of having double-standards, supporting despotism, and
responding inadequately to pre- and post-presidential election violence,
government corruption, ethnic tensions, and presidential authoritarianism.

Based at least in part on a
December 2008 interview with Mutunga, Canadian scholar Stephen Brown said,
"Donors [defined by Brown as western governments and their missions in
Kenya, including both diplomatic and aid representatives, but not specifically
including private entities] might not actually mind the 'imperial' powers of
the presidency, as it makes for a strong interlocutor. For instance, they would
prefer not to renegotiate access to military bases with parliament."

When he was participating in the
donor sector, Mutunga is said to have grown ideologically intolerant, tagging
and parodying those of his former colleagues in civil society and the academy
aligned to the Kibaki government as "traitors".

At a July 2010 meeting of the
Bunge La Mwananchi movement, one participant alleged that Mutunga had
"intruded into the movement's affairs eroding the ideals set by the
founders and causing needless friction and infighting amongst the rank and
file". Another said that Mutunga had been claiming falsely that the Ford
Foundation was working with the movement and that Mutunga had planned a
counter-demonstration to support certain corrupt individuals when the movement
was planning to move against them.

Some Christian Kenyans accused
the Ford Foundation of funding, while Mutunga worked for the foundation,
abortion rights advocacy organizations and liberal sex education groups
worldwide, including among others the International Planned Parenthood
Federation, the Planned Parenthood Federation of America, and the Sexuality
Information and Education Council of the United States.

[ I have to point out that some of the things in the Wikipedia article
are NOT factually accurate- for example the year he left detention. Also
the big about the so called "neo-liberal turn" shows a bit of semantic
confusion. "Neo-liberal"as used in political parlance is the EXACT
opposite of "liberal'. A neoliberal is essentially a FASCIST!]

Clearly from the above, Willy
Mutunga is a patriotic Kenyan with a long history of beingon the Left.

Some people may be surprised that
for several years he was among the most read newspaper columnist with a regular
piece in the mass circulation Nation appearing every Saturday.

Only it was not under his real
name, Willy Mutunga.

According to the same Wikipedia article I have just cited-

As "Cabral Pinto", the name of a
columnist with the Daily Nation newspapers that Mutunga used as his pen-name
since 2006 to avoid conflict of interest as Ford Foundation senior manager, his
articles were well known for defending gay rights and "Africanizing
homosexuality" in Kenya and the region.

All these potential presidents
come from five communities that control over 70 per cent of the political vote.
Political alliances have been built around these communities and our politics
ethnicised.

It is therefore easy to
understand why most Kenyans still question why Mr Odinga lost the presidential
elections in 2007, controlling as he did the Luhya, the Kalenjin and the Luo
votes, as well as having a good following in Nairobi, northern Kenya and the
Coast. Ethnicised politics works on the basis of simple ethnic arithmetic.

What seems to be clear about the
media’s imposition of potential presidents for 2012 is lack of critical
evaluation of these six Kenyans. In what way will any of them change the status
quo in Kenya?

Are we saying that the country
has no better vision than being saddled with the destructive vision of the
Kanu-Kenyatta-Moi-Kibaki imperial dictatorships? Why is the Press not analysing
their political track records?

Have we ruled out a third term
for President Kibaki? We should not be as politically naïve as to imagine that
the era of life presidents in East Africa, the Museveni type, is dead and
buried.

One of the critical issues on the
impending presidential election is that the media do not discuss what pertains
to the ideology, values, vision and politics of whoever should be president.

It is not difficult for us to set
political commandments for the next president. Obviously, Kenyans want an
incorruptible president? Should we not shun potential presidents who have been
suspected of corruption, murder, rape, land-grabbing and divisive politics, as
well as who rarely discusses national issues?

Why should we have a president
who, having been a politician, has shown that she or he is totally clueless
about how Kenya should develop?

Why, indeed, should we elect a
politician who has displayed dictatorial tendencies and is totally anti-people?

This is not to mean we are
looking for political angels because they do not exist, but we can come up with
a check-list that constitutes the political commandments we can base our voting
on. And the commandments apply to all political leaders, not simply the
presidential candidates.

To be able to implement the
commandments on the potential president we need to take head on the divisive
evils of race, ethnicity, religion, gender, generation, clan and region.

We need to focus on issues that
bedevil Kenya — how do we end gender inequalities and inequities? How do we
give jobs to the youth? How do we eradicate poverty and preventable diseases as
well as give quality education to our children?

How do we deal with the land
issue, which is the basis of our inequalities and chronic poverty? How do we
struggle for our sovereignty in the age of exploiting and dominating empires in
which some die and others are born?

How do we de-personalise our
institutions? How do we craft a democratic constitution that is about equitable
sharing of resources and political power among the various communities?

Why have the media not been
provocative, proactive and investigative on the issue of potential presidents?
If Kenyans, as the recent polls show, trust Mr Maina Kiai, Prof Wangari
Maathai, Archbishop Ndingi mwana a’Nzeki, Ms Muthoni Wanyeki and others, why
are they not in the media’s books of potential presidents?

Is it not the duty of the media
to suggest alternative political leadership?

Kenya needs an alternative
leadership and a leader. The leadership will comprise Kenyans who have a vision
that can get the country in a developmental trajectory based on a pro-people
agenda and fierce patriotism.

We need to focus on the merger of
talents in the alternative leadership rather than in the qualities of one
leader. That we may not have our Moses, Gandhi or Mandela is no major setback.

His February 9, 2008 column was
on the question of traitors and heroes:

THESE KENYANS AREN'T TRAITORS,
THEY ARE THE PEOPLE'S HEROES

One of Kenya's heroes is
politician Bildad Kaggia. Breaking ranks with Kanu and President Jomo Kenyatta
over the party's land policies, Mr Kaggia teamed up with Jaramogi Oginga Odinga
to form the Kenya People's Union, the most radical party in Kenya's political
history.

Mr Kaggia was not only jailed on
trumped-up charges, but, he was subjected to death threats and almost
assassinated in Thika because of this heroic move.

In the eyes of Mzee Kenyatta and
ethnic chauvinists around him, Mr Kaggia was a traitor to the Kikuyu cause. But
he never relented or gave up, and today he remains a role model for subverting
negative ethnicity. He taught us never to ethnicise injustice, theft,
half-truths and falsehoods, evil, ideology, politics, corruption or poverty. In
his opinion, this ethnicisation is precisely what Mzee Kenyatta expected of
him.

What ethnic cause has Ms Njeri
Kabeberi, Ms Muthoni Wanyeki, Ms Gladwell Otieno, Mr Maina Kiai, Mr David Ndii,
Mr Nahashon Gacheke, Mr Ndung'u Wainaina and Mr James Maina betrayed? Is it the
same ethnic cause that Mr John Githongo is supposed to have betrayed? Is
calling for peace with truth and justice a betrayal of this ethnic cause? Have
the interests of the Kikuyu elite become the interests of the Kikuyu community?

As far as it is known, the Kikuyu
elite have not shared their economic largesse among the poor Kikuyu. The Kikuyu
daughters and sons mentioned above and others are better leaders and
representatives of the Kikuyu community than the Kikuyu elite. They have
witnessed the community's collective interests in co-existence with other
communities without ethnic jingoism, arrogance and chauvinism. They have
followed the beaten path that Mr Kaggia boldly followed.

Another of Kenya's heroes is
Jaramogi Oginga Odinga. The Kenyatta and Moi regimes kept Jaramogi in a cruel
political wilderness. Yet he never organised the harassment of Mr William
Odongo Omamo, Mr Okiki Amayo, Mr Dalmas Otieno and other Kanu followers in
Nyanza who, along with the two presidents, were part of Jaramogi's persecution.

What ethnic causes have Mr David
Habil Odongo and Ms Grace Wangui betrayed by getting married and investing in
Classic Guest House of Dunga in Kisumu?

WHAT ETHNIC CAUSE DID THE PNU
councillors in Migori breach and betray? Why are they on the run for fear for
their lives? Who decided that Luos support only Mr Odinga or face the
community's wrath? Should the Luo elite decide whom members of the community
should marry?

Who in Luoland is speaking out against this type of negative
ethnicity?

When are we going to hear Mr Dan
Okello, Mr Oduor Ong'wen, Mr Edward Oyugi and Prof Anyang' Nyong'o speak out
against the negative dictates of the Luo elite in the garb of collective ethnic
good?

President Moi set the ball
rolling when he condoned the illegal eviction of non-Kalenjins from the region
in 1990, 1991 and 1998. Now the Kalenjin elite are telling the poor Kalenjins
that they will get their land back once the non-Kalenjins living in the Rift Valley
are ethnically cleansed.

But the Kalenjin elite are saying
nothing about the huge tracts of land they and other multiracial and
multi-ethnic elite own. The Kalenjin elite are saying nothing about the land in
Rift Valley owned by foreign companies and individuals. While land grievance in
Kenya, Rift Valley in particular, must be addressed, surely, it is no lasting
solution to the matter and no reason for the Kalenjin elite to pit the poor
residents against the poor from the other communities by engineering ethnic
cleansing.

It is no reason for the Kikuyu
elite to sponsor reprisal attacks by poor Kikuyus on poor non-Kikuyus in Rift
Valley and other areas.

Kenya needs also to hear more
voices of the racial and ethnic minorities in the country. Prof Ali Mazrui has
been patriotic in his interventions on this political crisis. Mr Abdulahi
Ahmednasir has made useful contributions in press articles. Ms Zarina Patel and
Mr Zahid Rajan have taken a patriotic political stand on the crisis. Mr Harun
Ndubi has joined other Kenyans in seeking a solution to the turmoil.

It is to the credit of the Kenyan
South Asians, the Swahili, the Abagusii and the Somali that all the great
Kenyans mentioned above have not been called traitors to the causes of their
communities, and their lives have not been threatened. The Kenyan Europeans
have their leaders in Mr John Sutton, Mr Robert Shaw, Dr David Western and Dr
Richard Leakey, among others. They, too, must speak out as they continue to do
great work in various fields among European and African communities.

If we want to save Kenya, we must
stop believing that it is only President Kibaki and Mr Odinga who will or must
save the count ry. It is about time Kenyans told the leaders what they want
before the strong foreign interests in the country decide what is good for our
motherland.

Interesting tit bits from the above article:

Gladwell Otieno, Zahid Rajan, Harun Ndubi and Abdulahi Ahmednasir all appeared
before Willy in the recent Supreme Court case. It would appear that the Chief
Justice also follows the discussions on the Jukwaa online discussion board.

Bearing in mind that way back in
1982 when Willy Mutunga was picked up and charged with sedition in court before
being detained without trial, he had been accused of having leaflets titled J.
M. Solidarity Day and Don't Be Fooled: Reject these Nyayos,
It is not surprising therefore to find thathe reveres the late J.M. Kariuki as can be seen from this tribute:

March 2, 2009, is the 34th
anniversary of the assassination of Hon Josiah Mwangi Kariuki, popularly and
affectionately remembered by Kenyans simply as “JM”.

The Elijah Mwangale-led
parliamentary committee that investigated the killing, laid the blame on the
State security machinery, senior government officials and the presidential
aides.

JM is best remembered for his
stinging criticism of Kenya’s ruling elite. “A small but powerful group of
greedy, self-seeking elite in the form of politicians, civil servants and
businessmen have steadily but very surely monopolised the fruits of
independence to the exclusion of the majority of the people.

“We do not want a Kenya of 10
millionaires and 10 million beggars.”

Professor Mwangi wa Githinji has
immortalised JM’s words by writing a book titled, Ten Millionaires and Ten
Million Beggars: A Study of Income Distribution and Development in Kenya, which
provides the evidence to reinforce JM’s critique of the Kenyan ruling class.

A FEW YEARS AGO, I ATTENDED THE
funeral service of Prof Katama Mkangi at All Saint’s Cathedral, Nairobi.
Activists Wafula wa Buke and Aluoka Otieno revisited JM’s murder by addressing
Prof Mkangi’s spirit.

“If you see JM, please let him
know that his Kenya has now 50 billionaires and 30 million beggars,” they
prayed. It is not difficult to know who the billionaires are.

JM is remembered also for his
love for the ordinary people and for spearheading a private member’s Bill in
Parliament that resulted in the enactment of the Hire Purchase Act. The Bill
had sought to protect the middle class who faced oppression from financial
institutions engaged in the business’s financing.

On the land issue, JM favoured
the imposition of ceilings by individuals, corporations, foundations and
religious organisations, the major categories that own most of the land in
Kenya. His challenge of powerful local and foreign vested interests must have
formed the motives of those who killed him.

JM’s murder shook the very
foundations of Mzee Kenyatta’s regime. There were demonstrations against the
administration in various parts of the country. Mr Mwai Kibaki was the only
Cabinet minister who attended the funeral.

If President Kenyatta had dared
attend the funeral he would have needed the security that President Moi required
when he attended Dr Robert Ouko’s.

Assassinations confirm to Kenyans
that the vested interests in this country will kill leaders who dare stand up
for ordinary Kenyans’ lives and livelihoods. The murder of freedom fighters
Dedan Kimathi and Pio Gama Pinto is a further example of this political truism.
Killing the messenger has never killed the message.

Kenya’s status quo of foreign
domination, exploitation and oppression, supported by the self-seeking elite
that JM talked about, cannot be sustained for ever and ever. History records
that Kenyans have never succumbed to domination and exploitation and that,
indeed, they have always fought for their freedom.

This message is currently being
conveyed to the grand coalition Government that follows in the footsteps of its
greedy and anti-people predecessors since independence.

As we celebrate the International
Women’s Day next week, we need also to glorify the spirit, determination and
sense of purpose that has been displayed by Ms Rosemary Kariuki (JM’s daughter)
and Ms Terry Kariuki, the widow, in leading the family in a struggle for
justice for JM.

THE TWO WOMEN ARE GREAT LEADERS
and politicians. They have joined broad movements that call for the end of
impunity and for the setting up of transitional justice mechanisms. They have
over decades built networks of solidarity with other Kenyan patriots seeking
justice for JM and other assassinated Kenyans.

They remind us of the mothers of
political detainees at Uhuru Park’s Freedom Corner in Nairobi, who did not give
up until their sons were released. They remind us of the mothers and
grandmothers of the disappeared in Latin America who never gave up until
justice was done.

The message for change can never
be killed. The messengers have been jailed, detained, forced into exile or even
killed. The message from the oppression is that leaders for change are prepared
to die for their motherland. Kenyans who need change comprise the majority, and
a cabal of local and foreign elites cannot for ever jail this majority.

Change is unstoppable as long as
people who believe in true justice, democracy, human and equal rights keep the
spirit to fight alive.

One of the reasons why Willy
chose the Cabral Pinto moniker is because he saw Pio da Gama Pinto, the slain
Socialist Nairobi MP as one of his revolutionary heroes as you can see from this piece
he did:

From 2pm to 5pm on Saturday (21st
Feb 2009), at Nairobi’s Professional Centre, a poet and former detainee, Mr
Abdilatif Abdalla, will be a special guest at a function to mark what the
organisers call Kimathi-Pinto Day 2009. The Mau Mau Research Centre is organising
the event in collaboration with several other pro-democracy groups.

It is important for Kenyans to
start remembering their patriots for change since the state does not do so.
Would it not have been a great gesture on the part of the state if prisoners
serving short sentences were released on February 18 in remembrance of the hanging
of Kimathi by the British?

Mr Pheroze Nowrojee, a prominent
lawyer, poet and political worker has written a great book on Antonio Rudolfo
Jose Pio Gama Pinto. He calls Pinto a patriot for social change and shows this
in his usual simple, clear language.

Pinto’s political mentors were
the architects and patriots of Indian independence, prominently Mahatma Gandhi
and Jawharlal Nehru.

Like them Pinto spent the rest of
his life fighting for Kenya’s freedom. Pinto was a journalist whose activism
and struggle were reflected in not only liberation journalism, but also in
trade unionism and organising political parties such as the Kenya Indian
Congress, the Kenya African Union and, later, the Kenya African National Union
(Kanu).

Pinto was also a member of the
Mau Mau central committee, the first vanguard of the group’s war of
independence. He helped freedom fighters in the forests of Mount Kenya and the
Aberdares by providing arms and supplies. He also looked after the families of
the freedom fighters, including those who had been killed.

All these were activities that
carried the death penalty during the British-imposed state of emergency. Like
all patriots for change, Pinto was courageous and constantly outwitted the
enemy. He was also a great pan-Africanist.

The British government detained
him, but a revolutionary does not give up the struggle for change in the
enemy’s prisons and detention camps, where he exposed colonial segregation. He
also organised football matches in prison.

Pinto himself was a great
sprinter and was chosen by the colonial government to represent colonial Kenya
in the 400m and 800m races at the Commonwealth Games in Vancouver in 1952. But
declined to take part, saying that his work for the country could not allow him
several months to train and compete.

Pinto was in detention and
restriction for five and a half years, and upon his release, he was involved in
the campaign for the release of Jomo Kenyatta and all other detainees and
prisoners.

He continued his liberation
journalism work, raised funds for the detainees and those who were released.
Like all revolutionaries, he was selfless and generous and loved all Kenyans.

As Che Guevara has written, “the
true revolutionary is guided by great feelings of love.”

Pinto was no different. It was
this love for Kenya and Kenyans that made him stand up against the Kenyatta
regime which he saw as a reincarnation of the colonial administration.

William Attwood, the first US
ambassador to Kenya and author of the still banned book, The Reds and the
Blacks: A Personal Adventure, was a Cold War warrior with a clear mandate to keep
Kenya in the Western bloc.

The opposition to the Kenyatta
regime, spearheaded by Jaramogi Oginga Odinga, fought for Kenya’s independence,
although in the eyes of Attwood, it wanted to place Kenya in Eastern bloc.

Attwood describes Pinto as a
“brilliant tactician,” whose “priority objectives were to whittle down British
influence, especially in the army and police, broaden his political base to
other tribes and become the champion of landless peasants and the urban
unemployed.” He also describes Pinto as Odinga’s “chief political adviser.”

It was for his struggle for true
independence and for social justice for the poor, vulnerable and marginalised
Kenyans that Pinto made powerful enemies from within and outside Kenya.

On the morning of February 24,
1965, three men rushed up through his home gate (Pinto’s home was where Sarit
Centre is now) and to his car window, called out: “Jambo!” and one of them
fired at him, killing him instantly.

On Saturday, as Kimathi-Pinto Day
is celebrated, we have mentors and models for patriotic change. True reformers
cannot any more claim they do not have political role models to help them fundamentally
change this country.

We should live to the words and
the spirit engraved in Pinto’s gravestone at Nairobi’s City Park cemetery: “A
light has been extinguished. Yet there arise a thousand beacons from the spark
he bore.”

Kenyan reformers should be part
of the thousand beacons from Pinto’s spark.

Willy Mutunga’s columns in the
Saturday Nation over the years reveals the passionate, revolutionary spirit
guided by his Marxist leaning ideology.

The final piece of evidence I
want to place before this Court of Public Opinion that is deliberating onthe
guilt or otherwise of Chief Justice Willy Mutunga In The Matter of the People of Kenya
vs. The Supreme Court Decision of March 9, 2013 is a long essay that has been
published as an entire chapter in a small book called the Power is Ours,
published by Pambazuka Press. Other authors in the slim volume include Bunge la
Mwananchi activist Gacheke wa Gachihi and blogger Onyango Oloo.

I have found a working definition of a movement by Professor
Yash Tandon useful and an illuminating analogy, imagery and metaphor. He writes
that “a movement is a complex phenomenon, it is dynamic, and it grows and grows
as more and more people join the ‘project’ (if it makes sense to them, and
involves them in its deepening and broadening). A movement is like small rivers joining to form a massive torrent.”
Within this metaphor we can build incredible content, character and critical
ingredients of a movement such as values, belief systems, ideology, politics
and structures.

Before we see the small rivers we see shining and clean
streams that emerge from small drops (individuals) that shine on the leaves.
The streams that become small rivers and then big ones that drain their waters
into lakes, seas and oceans depict collectives formed out of individuals
because streams run into each other creating a momentum that results in the
massive torrent. Lakes, seas and oceans are simply bigger collectives. As drops
become water and as the water grows on a specific journey the gaining of the
momentum has the potential to destroy or to navigate safely and harmlessly in a
process of self-healing and self-cleaning that is useful to humanity. The human
agency is critical in determining what the consequences of the massive torrent
are. The terrain or journey of the stream, small rivers, big rivers into the
lakes, seas or oceans has to overcome barriers in its way and again human
agency is critical.

When we look at the character of the stream or river the
issue of its cleanliness is important. Clean water nurtures and is part of our
livelihood. We have seen dirty streams and rivers that soil our environment
because of human agency.A clean and
nurturing movement focuses on the basic needs of the people and subverts the
negativity of the status quo: profits before people in all areas of human
endeavour.

We also know that streams and rivers dry up! So do
movements. They die. What is critical is to search the reasons streams and
rivers dry up and why movements die. The root cause would invariably be human
agency where the terrains of streams may be blocked so that they do not join
other streams and where movements die because of egos, greed, opportunism,
dictatorial leadership, personal benefits and agendas taking center stage,
intolerance, arrogance, lack of understanding, backward ideologies and politics
and extreme fears for progressive change.

We see in this discussion key milestones in any movement.
Movements start with individuals who have a vision of this journey of
progressive change. The individuals possess particular values and character
that reflect their commitment to change. These individuals in turn form a
collective (organization/movement) in it’s own environment. Mergers of
individual collective become bigger collectives or movements. Without water,
streams dry up. Without a following of masses, movements die. Following is
premised on the vested interests of the people that are captured by the
messages of the movement that focus on its ideology, vision and politics. Thus
contradictory movements exist to seek support for their respective interests.
There are movements that reinforce the status quo while others resist it. There
are fierce battles in the journey of change between contradictory movements.
Change happens when the movements of change either prevail upon those of the
status quo to make concessions or ultimately defeat them in the battles for
leadership and direction. The battles in question are about contestation for
political power and the capturing of the state that rules and controls all
national resources. If the aim of the massive torrents that rivers display is
to drain water in lakes, seas or oceans navigating barriers is critical if
there is to be progress in that objective. For movements seeking change, the
main prize is the capture of state power by a leadership that is committed to
fundamentally restructuring or alternatively crushing the status quo. It is on
the arenas of ideology and politics that armies are in combat for change and
against the status quo and verbalize, historicize and problematize the
unacceptability and unsuitability of the status quo.

The burning question now is whether movements need to be revolutionary
or reformist and whether reforms are the basis of revolutionary change. There
have been debates over centuries over this issue. Rosa Luxemburg’s work is an
interesting place to start (and within it capture polemics between such
revolutionaries as Marx, Engels, Lenin, Trotsky, Stalin, Enver Hoxha, Nyerere,
Nkrumah, Cabral, Rodney and many others) as she addressed this issue fully.

The 20th century itself is pregnant with this
debate. The Bolshevik Revolution in 1917 continued this debate internally and
externally. Reforms became the lifeblood of regimes that faced overthrow
(Britain, Europe, America and Asia). The New Deal, so-called Welfare capitalism
in Britain, and Social Democracy in Europe were fundamental attempts to
convince citizens in those countries that what socialists were offering could
actually be implemented by the capitalists. Sidney Lens Unrepentant Radical: An
American Activist’s Account of Five Turbulent Decades has very interesting
discussion on the New Deal and how the reforms subverted the work of the
Communist Party of America.

It is within this context that constitution making and human
rights, particularly in the so-called Third World, needs to be located. The
human rights discourse has its liberal and socio-democratic contents. It is a
discourse that is invoked to prop up the status quo as well as to reform it.
Welfare capitalism reflected both crusades until 1974 when neo-liberalism put
an end to welfare capitalism and social democracy experiments. Under Thatcher
and Reagan the engines of neo-liberalism fueled by World Bank, IMF etcnurtured privatization, structural adjustment
programs, and corruption while repeating Churchill’s dictum, “Capitalism is the
worst form of government, but nobody has designed a better one.” The collapse
of the Berlin Wall in 1989 reinforced the view that the only development
paradigm the world had was neo-liberalism. Prophets of neo-liberalism such as
Fukuyama and others were quick to reinforce these positions. It was in 1989
when a Ugandan revolutionary, Professor Wadada Nabudere wrote his unpublished
manuscript, The Political Economy of
Social Imperialism stating very clearly that socialism and communism did
not collapse with the rubble of the Berlin wall. What collapsed in the Soviet
Union, Eastern Europe, China, Albania, Nabudere argued, was not socialism or
communism. Here was a voice in the wilderness that was not heard as socialists
and communists chose to embrace human rights in their ideological and political
pursuits. There are two reasons for this: the so-called collapse of socialism
and communism dealt telling blows on the left coupled with the propaganda from
the right that what the left stood for was untenable; the ideological confusion
among the left that followed found a temporary home in human rights discourse,
particularly its transformative arm.

Neo-liberalism took a great hit 19 years after the fall of
Berlin wall. The financial crises in America and Europe brought back the cries
for welfare capitalism (this time called state intervention, stimulus packages,
etc) with Gordon Brown in the UK arguing that socialism was back on the agenda
of development (this opportunistic stance did not win Labour the elections in
2010). Serious writing has taken place (see Monthly Review publications on this
issue) on the failure of neo-liberalism to work and discussions on alternative
forms of development.

It is in this context that the human rights and social
justice paradigms (and constitution-making paradigm) have become relevant given
the polarization occasioned by the events of 1989 and 2008. Within these
paradigms the old paradigms of development (socialism and communism) can be
revisited while imperialism and neo-liberalism can be interrogated. Given the
fact that nobody talks about revolutions these days, except the right as it
glorifies technology and profits and before people, armed struggle has been
temporarily captured by fears of being labeled “terrorism.” Human rights and
social justice paradigms offer an intellectual, ideological and political
environment to take up the ideological discussions of old without the
polarization that marked those debates. If the paradigms can do simply that
(and this has to be interrogated as well) then the 21st Century
gives us the opportunity to discuss the developmental paradigm that will rescue
the world from war, poverty, disease and crime.

In the spirit of honesty, personal and historic reflection,
I will share herein my experiences in various movements and evaluate their
strengths and failures.I have been personally involved in the
December 12th Movement, the FORD (Forum for the Restoration of
Democracy) movement, the human rights movement since the 1990s, the NCEC
(National Convention Executive Council) movement and the National Alliance for
Change (NAC) that changed into National Alliance Party of Kenya (NAK) before
the alliance with the National Rainbow Coalition. The two gave birth to
National Alliance Rainbow Coalition (NARC) that defeated Kenya African National
Union (KANU) in the Kenyan general election of 2002.

The December 12th Movement was a culmination of
various streams of academic and student underground work in Kenyatta and
Nairobi campuses of University of Nairobi. It was a movement whose ideological
and political lines came from units of leftist academics who were adherents of
socialist and communist paradigms of development during the decades of 60s, 70s
and the early years of 1980s. First were the study groups, reading great deal
of Marxist-Leninist-Mao Zedong-Enver Hoxha-Kim-Il Sung thoughts, Nkrumah,
Cabral, Che Guavara, Nyerere, Rodney, Samir Amin, Nabudere, Mamdani, Issa
Shivji, Yash Tandon, Karim Hirji and others. Then the studies went beyond
academic papers and discussions to real politics. With parliament as the centre
of dissent crushed in the mid-70s (and the 8 bearded sisters in jail or exile),
the University became the centre of agitation and dissent. During this period
leftist scholars and students made strategic alliances with radical politicians
in parliament who gave talks at the University. I remember one of those rallies
when Koigi Wamwere was at his anarchical and adventurous best and the entire
student population was ready to die for the Motherland.

The detention of Ngũgĩ wa Thiong'o in December 1977
signaled the start of the suppression of dissent at the University. When Ngugi
was released in December 1978, the study groups constituted themselves into a
movement of dissent at the University of Nairobi. The University Staff Union
(resurrected in April 1979) became the vehicle of such agitation, cleverly
using the bread and butter issues spiced with such issues as academic freedom
(the whole gamut of it, that is, human rights) and the right to organize.The Union was banned by President Daniel
Toroitich Arap Moi at wedding ceremony (General Mulinge’s son was getting
married), along with the Civil Servants Union on July 19, 1980. We were able to
operate as a University Academic Staff Association after the ban. The
Association did not survive the detention of lecturers that took place in July
and August 1982. Ngugi’s Detained has
an appendix which is a write-up I authored on behalf of the Union. In that
piece I prepared a chronology of activities the Union engaged in to get Ngugi
to resume his duties at the University.

December 12th Movement (DTM) was launched in May
1982 with its paper Pambana.
Repression came too quickly for DTM to mobilize Kenyans as the Moi-Kanu
dictatorship reared its repressive head. The dictatorship moved into the
University and detained lecturers. The August 1, 1982 coup gave the regime the
excuse to move in and deal a death blow to dissent at the University. Those
elements of DTM who escaped Moi’s detention published another edition of Pambana. Ultimately, DTM’s activities
were taken up by Mwakenya and Ukenya in exile. With the crushing of Mwakenya,
Ukenya continued its activities in the UK, but it was clear the movement had
retreated. I suspect Ngugi is one person who can write more about this history,
but I know Maina wa Kinyatti has also written some of it his book The History of Resistance in Kenya. Some
of us are already working on a specific review of this book because it has
great weaknesses, with many of us who were involved dissatisfied with the
interpretation of the resistance during this period.

I was a member of DTM. I participated in the writing and
distribution of the first edition of Pambana
(it is Alamin Mazrui who gave us this name of DTM’s mouthpiece). I served as
Secretary General of the University Staff Union and University Academic Staff
Association respectively until I was arrested on June 10, 1982 and subsequently
detained without trial on July 29, 1982. I participated in the study groups
within the leftist academic cycles and wrote ideological articles on Commercial
Law, my teaching subject at the University. At the University, I also worked
with the Legal Aid Centre to give legal aid and advice to the Kenyan poor
including University students. It was clear from my detention papers that I was
detained because of my political activities at the University.

Some of the comrades I worked with had been authors of Cheche which in 1982 Zed Press published
as INDependent Kenya. These comrades
were also the authors of Mwunguuzi, a
think-piece that gave broad guidelines for a democratic constitution for Kenya.
Kamoji Wachiira is currently writing about the political organizing that took
place in 1960s and the early 1970s.

I was released from detention on October 20, 1983. I started
practicing law from January 1984 (criminal practice) and was active in Law
Society of Kenya (LSK) politics. I had served as Member of the Council before I
was detained so in 1991 I was Muite’s running mate for elections of Chair and
Vice-Chair of the Council. LSK worked closely with the Ford movement in
agitating for the repeal of Section 2A of the constitution, which would create
a multi-party state and introduce term limits for the Presidency. Again the
alliances were clear: civil society and opposition political parties. When
Muite joined Ford Kenya and ran for political office in 1992, I took over from
him. LSK continued these relationships and one of the fruits of this
relationship was the private prosecution of the Goldenberg suspects. Amos Wako,
Attorney General of Kenya, whacked our prosecution by terminating it and the
rest is history.

I served as Vice-Chair and then Chair of the LSK. I found
Muite’s political astuteness important.It was through Muite’s mentorship that I saw very clearly how civil
society movements can make alliances with the political civil society. It was
also during this period that Muite introduced me to various political and
religious leaders. Through Muite I learned how critical intelligence in
political work is. You cannot run an important political project if you do not
know what the enemies of that movement are thinking and planning!

My experiences in the FORD movement were critical in
reflecting how a mass movement loses its dynamism when it is converted into a
political party. Political parties are formed to contest political power and
once they are disengaged from the movement that constitutes their following and
constituency, they become enslaved by narrow interests of fundamental vested
interests in society. It is because of these experiences that while working
with NCEC I wrote pieces on how social movements can enslave political parties
so as to pre-empt political betrayal by the political elite.

Maina Kiai, Makau Mutua, Peter Kareithi, Kiraitu Murungi and
I are the founders of the Kenya Human Rights Commission (KHRC). It was Maina
who thought through the organizational aspects of the Commission, getting in
touch with the four of us and ensuring that the Commission was registered in
Washington DC in the US. This was in 1990-1. Both Makau and Kiraitu were in
exile in the US. The rest of us were students who were also seeking asylum in
North America because of our political activities at home and abroad.

The formation of the Ford Movement and the repeal of section
2A of the constitution convinced us that we could be operative in Kenya. Maina
set up the organization in Kenya in 1992 and became its first CEO. We
immediately used the human rights framework to prop the emerging multi-party
politics in Kenya. I have told the story of KHRC in my book Constitution-Making from the Middle.
Both Maina and I served in the Council of the LSK and we were able to create an
expanded movement comprising LSK, Citizen’s Coalition for Constitutional Change
(4Cs) and KHRC. That movement ultimately found itself in the broad movement of
the NCEC.

At KHRC, I served as Vice-Chair of the Board until 1998 when
I succeeded Maina as the CEO of KHRC. It was during my stay at KHRC as CEO when
Vision 2012 was crafted whose aim was
to root human rights and social justice issues in communities. The idea was
that the human rights message had to contend with other messages at the
grassroots to grow its following and critical mass constituency. We were also
aware that human rights work among the middle classes was becoming
professionalized and bureaucratized while passion for it was waning. Tapping
the passion at the grassroots reflected clearly by workers, women workers,
peasants and community based organizations was the only way to keep the
movement ideologically and politically relevant.

At KHRC I authored think-pieces on human rights and the
discourse’s relevance to politics of resistance. When Makau came to Kenya in
2002 on his sabbatical we were able to get KHRC actively involved in the
politics of the day within NCEC and in the political parties. As stated above,
human rights offered an intellectual, ideological and political environment to
take up the ideological discussions of old without the polarization that marked
those debates.

I have documented the alliances of pro-reform forces in my
book Constitution-Making from the Middle.
I tell stories of the alliances between NCEC and the political parties. I show
how civil society is politically inflicted by the principle of non-partisanship
and how the Inter-Parties Parliamentary Group (IPPG) gave concessions that we
did not consolidate. In the alliances, the civil society groups acted as think-tanks
for the movement, led it because the politicians wanted to stay in the
background and avoid their battles until the right moment. That came with IPPG.

I was one of the Co-Conveners of the NCEC. I was one of the
key ideologues and wrote several political pieces on how NCEC could engage in
the politics of capturing state power. Within NCEC I was able to understand how
leadership can democratically and organically grow. I understood very well how
various talents of activists can be mapped and consequently merged for the
greater good of the movement. In NCEC I witnessed the great potential of the
youth as intellectual, ideological leaders and soldiers of the movement. I came
to appreciate the role artists play in movements. NCEC also gave me great
insights into how movements are infiltrated and subverted. As NCEC also worked
closely with American, British and European donors, I came to appreciate the
dangers of movements that are also appendages of donor interests.

The National Alliance for Change (NAC) was an alliance of
civil society groups with the Democratic Party of Kenya, National Party of
Kenya and Ford Kenya (led by Kibaki, Ngilu and the late Wamalwa) formed in
2002.Civil society groups did what came
naturally to them as they had done in NCEC. I chaired NAC until it changed into
a political party, National Alliance Party of Kenya (NAK), when civil society
groups left the movement. NAC generated many concept papers on virtually every
economic, social and political issue. We also came up with a draft
constitution. I believe the NARC government used one of those papers, one
crafted by Joe Donde on free primary education. As Chair of NAC I interacted
with many opposition politicians and was able to gain more understanding of the
decadent nature of the Kenyan political leadership.

DTM had great intellectual and ideological capacity, a
fundamental ingredient of any social movement. Given the repressive regimes of
the time DTM also build its following within the Universities. Movements within
the ivory tower suffer the weaknesses of not having a broad popular following.
The movement was addressing this weakness when forces of repression pushed it underground
and into exile and jails.

Ford was a mass movement that had great following in the
country. It challenged the Moi-KANU dictatorship and the original Ford Party
could have won the elections in 1992. The disconnect between social movements
and the political parties they are supposed to vote into power was a glaring
weakness of the Ford movement, which was not discussed. The party split on
ideological and ethnic issues which should have been discussed in the movement.
Movements must interrogate, historicize and problematize this issue because it
very critical to building a democratic nation in Kenya.

NAC and NCEC (encompassing the human rights movements)
showed the strength of civil society mobilization into the political agenda of
a country. NCEC showed the weakness of failing to discuss how social movements
can enslave political parties and make them accountable to the people. NCEC
also reflected one major weakness of civil society, its perceived role of
pressuring the state and not ever thinking of taking it over and controlling
it. Civil society existing definitions and mandate should think seriously about
the expansion to include political parties, especially those that are not in
power. This may be a great political bridge of keeping social movements and
political parties connected.

Some of the critical lessons have emerged from my
experiences and insights into the weaknesses and strengths of the movements
that I have been involved in.In
particular, I take the following as key lessons:

If you have no constituency and no following you cannot
expect your ideological and political line to be dominant in any political
alliances

Civil society groups do a lot of work for political parties
without seeking political participation. The notion of agitating against the
state is great for any opposition political parties that can utilize the
resources of civil society for their ultimate political gain.

Civil society organizations have to problematize politics in
their work. At the moment, the capturing of state power is not part of their
mandate.

Civil society organizations and movements have to define
their ideology and politics and seek alliances with political parties on that
basis.

NAC and NARC brought to an end the political strategy of
leftist politics being incubated in conservative politics. I know how often we
used to recall Marx’s toast to the Chartists. He compared revolution to a mole
that digs underground only to erupt at the appropriate time with dire
developmental consequences. The reformers in NARC (27 in number) did not even
dig! They were consumed by the right in a matter of months. Again, what was a
reform movement in NARC was not an independent movement with a clear ideology
and leadership that aimed at the contest for political power against the
conservatives. Even when the MOU was torn up by Kibaki the reformers in NARC
did not quit and form a strong movement for 2007. The reformers stayed with the
usual suspects and gave no political sustenance to the Social Democratic Party.
History now records that some of the reformers joined the gravy train and ended
in the dustbins of reform history via Anglo Leasing! Perhaps there were no
reformers, but great opportunists.

The NARC experience gave birth to fresh debates about
alternative political leaderships and social movements that will generate such
leaderships. Thanks to the unacceptable status quo in Kenya these debates have
now shown some promise. Various social movements seem to know that capturing of
the state power is the beginning of progressive change in Kenya. Constituency building
has become important in many of these movements.There is afoot a strategy to organize a
congress that will bring all these streams together. Indeed, some of the
activities pertaining to the referendum on Kenya’s proposed constitution
scheduled for August 2010 reflect this. If these movements consolidate in a
united movement with its leadership it should be able to start asking questions
of alliances with the major political players. The difference will be that they
will have bargaining power that they can use and they can politically decide
which of the political players can give reforms some space.

How does one deal with the issue of leadership? NCEC
provides a framework that I found useful. Leadership cannot be discussed
upfront. It emerges out of struggles in those trenches when different roles
have to be performed. The merger of talents in NCEC was a great lesson of how
to map the talents and expertise of leaders. When ultimately one emerges as the
first among equals there is not much debate. This formula is not being followed
by the various streams of movements that are trying to come together at this
time. People want to come to the congress as leaders!

DTM taught us that a movement needs strong intellectual,
ideological and political base. It is in that base that visions of the society
the movement would like to see are shaped, refined, re-aligned and tested. No
revolutionary or reform movement can succeed without such leadership. History
records how such leadership can be the blessing or curse of social movements.

The current reform movement is fairly clear that it does not
want the status quo. Within the rubric of mitigating the status quo there exist
various shades of ideological and political differences, but I believe it is
not difficult to build a social democratic consensus that can be nurtured in
the implementation of the new constitution. I believe there are various
political spaces that are available in counties, senate, municipalities and
parliament itself. It is possible to have representation in those spaces. Many
people still argue the path to be followed is the pure one that stays
unpolluted by the existing streams that feed into the status quo. That thought
ought to be interrogated against the possibility of widening spaces of reform
in alliances with some reform-minded political players. Such alliances have
their own problems, but I am convinced that if the alternative leadership is
strong and has a following, it can grow within that alliance and get some of
its policies implemented. It is also clear to me that such alliances will not
be permanent and there is need to discuss upfront when the parting of ways is
to happen. I believe that is the burning question of our reform politics at the
moment.

I would really like the opportunity to share these lessons
with future movements, to talk to the leaders, the cadres and followers of
these movements. I would like to document their successes and failures. I would
love to be among the ideologues of such movements. As an ideologue of the
movements, I have thought through the construction of a social democratic
economy in Kenya undertaken by a human rights state that is controlled by a
progressive political leadership. The blue prints available can be used for
debates by the movements and political struggles by them could be on the basis
of such discussions. I have mapped the respective talents, skills and expertise
of various reformers in Kenya. I have thought through how these respective
attributes can be merged to bring about a patriotic and dynamic core of
leadership in the country.

Movements need cadres whose livelihood is addressed. I have
thought through the building of passionate cadres for movements who get a
decent livelihood out of the movement. We lose many cadres to reactionary
movements because they provide temporary sustenance to them. The work of cadres
in a movement is a full-time job and it is the responsibility of the movement
to remunerate the cadres accordingly.

I have thought through how the movements can be financed by
the people. We tend to forget that the Kenyan people supported reformers during
the colonial period. The first African politicians owed their sustenance to the
people who took them as their representatives. The Kenyan people bought their
representatives cars, build them houses and clothed them! Movements that are
not funded by the people cannot claim to have the following of the people.
There are reformers who have set up projects in various parts of the country
that can act as places for political education and for the exchange programs
among cadres of the movement. These activities could be scaled up.

I believe, I could help the movements understand the global
situation through discussions and by recommending the appropriate readings. The
current global status quo is not sustainable and we have entered in yet another
era of reforms comparable to the period after 1945. We can now confidently
argue that neo-liberalism has failed and start to challenge the dictates of the
World Bank, the International Monetary Fund (IMF) and other engines of
imperialism. We can make the argument that it is in the interests of global
peace and stability to carry out reforms.

We have also entered into the era of declining empires and
emerging ones. At the very least I can undertake to initiate such discourses
within movements to strengthen their global perspectives.

I have great contacts with activist movements in many parts
of global South. I could help point to our movements which movements, leaders
and initiatives are worth visiting to learn critical lessons in fundamental
transformation.

5 comments:

Anonymous
said...

Hi Oloo, I appreciate that you are a prolific writer and one of Kenya's foremost thinkers and Social Justice crusaders. But can't we just allow Dr Mutunga and co to first table their judgement before opening fire? Have a blessed weekend Bw Oloo.

It`s really a great post. I am sure that anyone would like to visit it again and again. After reading this post I got some very unique information which are really very helpful for anyone. This is a post having some crucial information.Friv 5 | Kizi 2 | Hopy 2